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Why is Family Law Arbitration the Future for Divorcing Spouses?

No matter what news sites you frequent or what newspapers you read, inevitably you will see a plethora of articles decrying the state of family law, whether it’s in Canada, the United States, Great Britain, or a myriad of other countries where beleaguered husbands, wives, parents, grandparents and children are taking a stand against justice systems that do not serve their best interests.

The legitimate complaints are legion and run the gamut from too few judges and impossibly lengthy delays; to outrageous legal fees, and a system that fosters disharmony and conflict.

Family law mediation has played an important role in alleviating the worst parts of the family courts, but mediation, which requires two reasonable people willing to compromise on the issues between them, is not for everyone.

There will always be people who are unable to “give in” and would rather have a decision foisted on them, than agree to anything their estranged spouse might suggest. The mere fact that a proposal comes from their former partner is enough to compel them to reject it.

These are the people who end up in court in lengthy trials that have exacting costs: financially and emotionally. When custody of children is an issue, the battleground of the courtroom renders justice that is often demanding, demeaning and destructive.

Certainly it is true that courtroom justice is for the very few who can afford it. Our system of family law has priced itself out of reach of the average middle-class family.

As social reformers and parliamentarians search for a remedy for what ails our family law courts, many jurisdictions have arrived at the conclusion that mediation must be expanded, to include judicial mediation, and that arbitration must be implemented for those cases that need decisive finality.

British Columbia’s long-awaited overhaul of the 1979 Family Relations Act, the pending Family Law Act, codifies family law arbitration, a sign that B.C’s Attorney-General’s Ministry has realized that family law courts are the worst place for couples to resolve their divorce issues.

How does arbitration work? First of all, you need senior, experienced family law lawyers or retired judges with an affinity for family law, a group that is almost extinct. Insiders know very well that most judges would opt out of family law cases if they had a choice. Extensive training is necessary to learn the skills required, akin to those a judge brings to her courtroom.

An arbitrator must be a neutral professional who understands the purpose and goals of arbitration and is an expert in the rules of evidence, rules that are less stringent than those found in the litigation arena. Also important is a depth of knowledge of substantive family law.

The key to arbitration is not to turn the process into a facsimile of the court system. The cornerstone of arbitration is a simplified, expedited decision-making process where both parties are heard and swift, reasoned, justice is fashioned.

The parties and their lawyers choose how they wish to proceed. Often couples agree on a statement of facts, submit their evidence via affidavits, provide a summary of the law relied on, and deliver their material to the arbitrator. Sometimes the parties’ lawyers will request an opportunity to provide oral argument with time limits agreed to in advance.

Where the arbitrator is charged with deciding one or two discrete legal issues, the arbitration can be booked within thirty days and the arbitrator can and should produce a written decision within thirty days after receiving the parties’ submissions.

Family law arbitration is also ideal for couples who do not want their “dirty laundry” on display for the entire world to see. Our courts operate transparently, a value that is cherished in democratic countries; however, the Reasons for Judgment in any given lawsuit are published on the internet, often revealing embarrassing details of family life and finances. Did you know your neighbor Mr. Smith was a cross-dresser?

For couples who have tried mediation and failed, arbitration is the beginning of a future that eschews high-costs and high conflict, an option whose time has come.

5 thoughts on “Why is Family Law Arbitration the Future for Divorcing Spouses?”

It is going in the right direction. However, some issues are,–international recognition of outcomes, –the enforceability of the outcomes, provincially, inter-provincially, and internationally. Many outcomes need the backup of ‘immediate arrest’, which only clear strong Superior Court Orders can provide.

Some people will still need the denunciation of the Court. We need a mechanism to get people; to accept the truth as well as tell it. Other than physical torture, the only way we have developed to get at ‘the truth’ when people are over-the-top, is through trial and Court ordered community investigations that have subpoena powers.

A specialized exclusive Supreme Court that only does “family law”, and that has the professionals from all the community disciplines solely attached to it, works better. Most of these ‘system decisions’ by government are driven by avoiding up-front costs. The new wrinkles are being sold, based on cost to the taxpayer, but I doubt there will be much if any savings.

Paul Forseth makes salient points. Arbitration is great, but what must emerge from the process is an agreement that ultimately receives the endorsement of a court of competent jurisdiction that translates into an enforceable order of that court. I am not a lawyer, but it seems to me that an order of that type could then be used in other jurisdictions, particularly foreign, to enforce measures that are available under the various treaties embodied in the Hague Convention. Without the court order, I’m not sure that a foreign jurisdiction, especially foreign, would regard the arbitration agreement as being other than a contractual issue.

And having the court being the ultimate decision maker is certainly not new…we see it all of the time in shareholders’ disputes of proposals, or measures proposed under CCAA legislation; after all of the discussions/arm-twisting/arrangements are done, it takes a court order to “seal the deal”.

On my admittedly limited experience with divorce cases, generally restricted (by my choice) to high-wealth instances where my sole function was to find hidden assets, I can easily see where arbitration instead of litigation would be attractive. That is, after the party had already succeeded (in his mind at least) to spirit away assets to his benefit. Then arbitration would have been a piece of cake…he was arbitrating over those things he had no problem losing.

But sometimes the good guys DO win. In one case, the husband, the guy with all the money, made the mistake of leaving the personal fax machine at the family residence. Someone like me has the capability of reproducing the last 700 pages that were sent/received from that machine. In that case, the former husband’s machinations concerning asset transfers of several million could be fully documented. Sometimes, even the smartest guys are stupid…